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Jason Gambert and SEO

Posted by Michael Martinez on May 1, 2008 in General

What follows is my own personal opinion and does not necessarily reflect the opinions of my employer, co-workers, or associates.

Jason Gambert wants to own the SEO trademark for our own good, to prevent “bad” SEOs from tarnishing the reputation of the industry. Because they disagree with his methods, many SEOs refuse to link directly to his site.

How childish and immature does the SEO industry in general have to behave before it becomes painfully obvious to most people that this industry has absolutely no collective sense of moral restraint?

Some of the more popular SEO bloggers have sought to punish people like Dave Pasternack, Ted Leonsis, and Jason Calacanis for not falling in line behind their collective SEO wisdom.

Should Gambert’s attempt to gain control over the trademark be opposed? Sure. It would have been less expensive for individuals to file opposition notices than to defend their practices in court. Then again, I didn’t feel like plunking down $300 to file a notice.

I registered the domain name SF-Fandom.com after I heard that Fandom, Inc. (founded by Chip Meyers, who came out of Centropolis Interactive) was trying to grab control over the word “fandom”. The word “fandom” was coined in the 1930s or 1940s and has been in widespread use ever since with respect to science fiction and fantasy. It cannot be trademarked but they tried to do it, even to the extent of sending out cease-and-desist letters. When I heard Fandom, Inc. went after Carol Burrell for fandom.tv, I decided it was time to throw my heart into the ring.

Fandom, Inc. did buy up some very popular SF fan sites, and as I recall they spent millions of dollars trying to create a brand around their Web enterprise. The SF fan Web community was by the year 2000 no stranger to cease-and-desist or surrender-the-domain letters. Star Wars fans, Star Trek fans, Harry Potter fans, and Hercules and Xena fans had all been engaged by various powerful film and television studios over trademark and copyright infringements. More than one domain name was challenged.

Generally speaking, however, the multitudes of infringements were never stopped and the studios eventually relaxed their usage policies to encourage the growth of science fiction fandom on the Web. It is now common for trademark and copyright owners to express and defend their rights on the Web only where it’s unclear to the consumer who owns the trademark or where the copyrighted work originated — or where there is a direct fiscal benefit to either the intellectual property right owner or the infringer.

That is not to say that intellectual copyright law or practice has been significantly redefined by the Internet. Rather, the monumental task of policing the Web remains so impossible that it’s more cost-effective for intellectual property owners to choose their battles carefully. You can only issue so many take-down notices before your lifespan runs out, before you’ve exhausted your venture capital, before your stockholders start asking when you plan to actually make money rather than spend it.

Fandom, Inc. never came after me despite my efforts to announce the domain in a LOT of very visible places. Some of the fan sites they hosted even linked to SF-Fandom. So eventually the reserve I had set back for retaining an attorney were put to other uses. I never had the good fortune of receiving one of those laughable cease-and-desist or surrender-the-domain letters. But I do still outrank Wikipedia for “SF Fandom”, which is as it should be, in my opinion.

Nonetheless, due to other legal measures being enacted against various fan sites, I did help found and promote the Xenite and Herkulean Webmasters Association around that time. One of the other founders was an attorney who had received more cease-and-desist notices than me (Xenite.Org has, as best I can recall, only ever received one such notice, from when we were carrying an Internet television show produced by someone else who had inadvertently used a trademark — they renamed the show immediately).

The XHWA grew to include over 200 member sites and lasted for several years. Although its purpose was to create a forum to help fan sites learn about and understand what was acceptable or tolerable with respect to intellectual property rights, it was also designed to serve as a springboard for organizing the fan community into launching protests against studios or other entities should they come down hard on non-commercial fan sites. Many fan sites are created by teenagers and college students who have neither the knowledge nor the resources to engage in contests of will and wits with expensive law firms.

However, by late 2001 — when many major SF movie franchises were actively involving SF fan sites in their marketing campaigns — the fear of a massive studio crackdown against the SF fandom community began to subside. The millions of monthly visitors to fan sites translated into a LOT of free publicity for movies, books, conferences, merchandise, and other revenue-generating projects. The studio community learned to convert online fandom into an exploitable resource and for the most part SF fans have been happy with the exploitation, since they in turn have been extremely creative in expressing their brand devotion and loyalty.

I don’t think any such symbiosis is possible with someone like Jason Gambert, however. Not because I feel he is a bad guy. I don’t know him and don’t want to treat him like a pariah. On the other hand, he hasn’t demonstrated any significant knowledge of search engine optimization to me (nor have a lot of SE conference speakers, but that’s an entirely different topic). So as far as I am concerned (and that is me, not necessarily my employer), I would never comply with any strictures he might place on my use of the expression “SEO” with respect to search engine optimization.

I, personally, would continue to host an SEO Web site on Xenite.Org. Whether the company I work for would discontinue this blog is another issue, but this blog doesn’t really promote our SEO services. SEO Theory a teaching resource and as such would probably be considered an acceptable use of a trademark term (but then, I am not an attorney and have no idea of how flexibly educational uses are interpreted). I am confident that we could show that we controlled an SEO Theory blog (on Blogspot) before Mr. Gambert filed his trademark application.

If it were me, I’d say, “Bring it on”. Come and get me. But this isn’t my blog and though I’ve brought this matter to our executive team’s attention they have not (yet) provided me with any directives on how to address the issue. As far as seo.xenite.org is concerned, Jason is more than welcome to see me in court if he doesn’t like the way I promote SEO services. If his trademark application is approved, I’m confident I would survive any attempt to enforce it against me.

That said, I think the SEO community has an opportunity to learn from this experience regardless of what the outcome may be. Trademark law is being reshaped by the Internet in gradual, subtle ways (as anyone who follows the occasional PPC trademark rulings should be aware). My experiences in the science fiction fandom community provide me with some insight into just how difficult it is to enforce a trademark that has already been in widespread “generic” use. But those experiences also taught me something about how much trademarks can be leveraged to produce new revenue streams.

That’s the real question we should be asking: how would Jason Gambert make money off the trademark? In order to be a trademark he has to engage in some sort of trade (his mark being exclusive to that trade). Would we all have to link to his Web site with the anchor text of “SEO”? Would we have to carry the “Jason Gambert SEO Seal of Acceptable Practices”, an image with a link back to his site? You might laugh, smirk, or dig your heels in and proclaim your determination to do no such thing but it would not be difficult to track down all the SEO firms that use the expression in their names, domain names, and promos or tag lines.

One can always hope that the trademark office won’t cave in to what amounts to a nonsense argument (a comment I make only on the basis of the documents I have read through SEOmoz’s coverage of Mr. Gambert’s application process). One could also hope that the SEO community will get over its fear of linking to people with anchor text.

Perhaps the worst aspect of this entire situation is how poorly the SEO community handles it. Fear of a link gives the link more power than simply providing it. The very fact that people refused to link to Mr. Gambert’s site sent hundreds, perhaps thousands of people to search engines to find it.

The SEO community created an entirely new query space overnight. In attempting to deny brand value to Mr. Gambert, the SEO community gave him unquenchable brand value. You cannot NOT communicate. Nor can you NOT create a query space if you’re going to talk about a topic.

This experience more than anything else should teach SEOs that it’s really not all about linking. Mr. Gambert didn’t need our stinking links to build search visibility. He just needed to get us talking.

If he could prove to me that this was his plan all along, I would strenuously argue that he knows more about Search Engine Optimization than Michael Gray, Aaron Wall, Danny Sullivan, and Rand Fishkin combined.

Think about it.